EXHIBIT 9.0
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made as of the 6th day of
December, 2003, by and among XATA CORPORATION, a Minnesota corporation (the
"Company"), funds associated with Trident Capital, Inc. (collectively,
"Trident"), and those certain holders of the Company's Common Stock listed on
Exhibit A hereto (the "Major Stockholders" and together with Trident, each a
"Stockholder" and collectively, the "Stockholders").
WITNESSETH
WHEREAS, the Major Stockholders are the beneficial owners of shares of
the Common Stock of the Company (the "Major Stockholders Stock");
WHEREAS, Trident is purchasing shares of the Company's Series B
Preferred Stock (the "Preferred Stock") and warrants to purchase Common Stock
(the "Warrants"), pursuant to that certain Common Stock Warrant and Series B
Preferred Stock Purchase Agreement (the "Purchase Agreement") of even date
herewith (the "Financing");
WHEREAS, the obligations in the Purchase Agreement are conditioned upon
the execution and delivery of this Agreement; and
WHEREAS, in connection with the consummation of the Financing, the
Company and the Stockholders have agreed to provide for the future voting of
their shares of the Company's capital stock as set forth below.
NOW, THEREFORE, in consideration of these premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. VOTING.
1.1 STOCKHOLDER SHARES. The Stockholders each agree to hold all shares
of voting capital stock of the Company (including but not limited to the Major
Stockholders Stock, the Preferred Stock, all shares of Common Stock issued or
issuable upon conversion of the Preferred Stock and all shares of Common Stock
issued upon exercise of the Warrants) registered in their respective names or
beneficially owned by them as of the date hereof and any and all other equity
securities of the Company legally or beneficially acquired by each of the
Stockholders after the date hereof (hereinafter collectively referred to as the
"Stockholder Shares") subject to, and to vote the Stockholder Shares in
accordance with, the provisions of this Agreement.
1.2 ELECTION OF DIRECTORS.
(a) On all matters relating to the election and removal of
directors of the Company, if (i) the holders of Series B Preferred Stock of the
Company (the "Series B Preferred") no longer have the right to elect two (2)
directors pursuant to Section 8 of the Company's Certificate of Designation of
Preferences of Series B Preferred Stock filed on December 8, 2003 (the
"Certificate of Designation") but (ii) Trident continues to hold the Required
Number of Common Equivalents (as defined below), the Stockholders agree to vote
all Stockholder Shares held by them (or the holders thereof shall consent
pursuant to an action by
1.
written consent of the holders of capital stock of the Company) so as to elect
members of the Company's Board of Directors as follows:
(i) For so long as Trident continues to hold the
Required Number of Common Equivalents (as defined below), at each election of or
action by written consent to elect directors, the Stockholders shall vote all of
their respective Stockholder Shares so as to elect the Trident Designees
described in Section 1.2(a)(ii) below. Any vote taken to remove any director
elected pursuant to this Section 1.2(a), or to fill any vacancy created by the
resignation, removal or death of a director elected pursuant to this Section
1.2(a), shall also be subject to the provisions of this Section 1.2(a). Upon the
request of Trident, each Stockholder agrees to vote its Stockholder Shares for
the removal of either Trident Designee.
(ii) For the purposes of this Section 1.2, the
following definitions shall apply
(1) "Trident Designees" shall mean (i) if
the authorized size of the Company's Board of Directors is eight (8) members or
more, the Trident Designees shall consist of two (2) individuals that are
nominated by Trident; or (ii) if the authorized size of the Company's Board of
Directors is seven (7) members or less, the Trident Designees shall consist of
(x) one (1) individual nominated by Trident and (y) one (1) individual who is an
industry representative not affiliated with the Company that is nominated by
Trident and acceptable to a majority of the remaining members of the Board of
Directors.
(2) "Required Number of Common Equivalents"
shall mean at least 800,000 shares of Common Stock (which shall include (i) any
shares of Common Stock issued to Trident or its affiliates, (ii) any shares of
Common Stock issuable upon conversion of any Series B Preferred Stock held by
Trident or its affiliates or (iii) any shares of Common Stock issuable upon the
exercise of warrants to purchase Common Stock held by Trident or its
affiliates).
On all matters relating to the election and removal of directors of the Company,
if (i) the holders of Series B Preferred are entitled to elect two (2) directors
pursuant to Section 8 of the Company's Certificate of Designation and (ii)
Trident continues to hold the Required Number of Common Equivalents, Trident
agrees to vote all Series B Preferred held by it (or shall consent pursuant to
an action by written consent of the holders of capital stock of the Company) so
as to elect the Trident Designees as defined in Section 1.2(a)(ii).
2. COMMITTEES. Upon the request of Trident, the Company shall use its best
efforts to cause its Board of Directors to appoint at least one Trident Designee
(as specified by Trident) to serve as a member of each committee of the Board of
Directors, subject to any restrictions on committee membership that may be
imposed by the Xxxxxxxx-Xxxxx Act of 2002, Nasdaq (or other securities exchange
on which the Company's securities are traded) and the Securities and Exchange
Committee, or any similar restriction applicable to the Company.
3. INDEMNIFICATION AGREEMENTS. The Company shall enter into an indemnification
agreement with each Trident Designee, in the form attached as EXHIBIT G to the
Purchase Agreement.
2.
4. FEES AND EXPENSES. The Company agrees that, for so long as Trident Designees
are represented on the Board, the Company shall reimburse such Trident Designees
for their reasonable out-of-pocket expenses incurred in attending meetings of
the Board or otherwise acting on behalf of the Company at the request and
direction of the Board.
5. TERMINATION.
5.1 This Agreement shall continue in full force and effect from the
date hereof through the earliest of the following dates, on which date it shall
terminate in its entirety:
(a) ten (10) years from the date of this Agreement;
(b) the date on which Trident ceases to hold the Required
Number of Common Equivalents; or
(c) the date as of which the parties hereto terminate this
Agreement by written consent of (i) the Company and (ii) holders of a majority
of the shares of capital stock of the Company then held by Trident (on an
as-converted into Common Stock basis).
6. TRANSFERS OF MAJOR STOCKHOLDER STOCK.
6.1 PERMITTED TRANSFERS. Notwithstanding anything to the contrary
contained herein, shares of Major Stockholder Stock that (i) are sold by a Major
Stockholder in transactions effected on a national securities exchange or
through the Nasdaq Stock Market (excluding block trades of 10,000 shares or more
to a single purchaser) or (ii) are transferred as bona fide gifts or donations
to charitable organizations, (each, a "Permitted Transfer") in either case,
shall be transferred free and clear of any restrictions on voting as described
herein. In the case of block trades of 10,000 shares or more to a single
purchaser, and all other sales or transfers of Major Stockholder Stock that are
not Permitted Transfers (each a "Restricted Transfer"), such transfers shall be
permitted to be made free and clear of any restrictions on voting as described
herein, provided that such Major Stockholder shall first grant to Trident the
right of first refusal set forth in Section 6.2.
6.2 RIGHT OF FIRST REFUSAL. If a Major Stockholder proposes to sell any
Major Stockholder Stock in a Restricted Transfer (the "Restricted Transfer
Shares"), Trident shall have a right of first refusal to purchase all (but not
less than all) of such Restricted Transfer Shares. The Major Stockholder shall
give Trident written notice (the "Transfer Notice") of its intention, describing
the Restricted Transfer, the price at which such Major Stockholder is proposing
to sell the Restricted Transfer Shares (the "Offer Price"), and the terms and
conditions upon which such Major Stockholder proposes to issue the same. Trident
shall have seven (7) days from the date of receipt of such Transfer Notice to
agree to purchase all (but not less than all) of the Restricted Transfer Shares
proposed to be sold, at the Offer Price and upon the other terms and conditions
specified in the Transfer Notice by giving written notice to such Major
Stockholder. If Trident elects to not exercise its right of first refusal as to
such Restricted Transfer Shares, the Major Stockholder may sell the Restricted
Transfer Shares to any person or persons at the Sale Price and upon the terms
and conditions specified in the Transfer Notice.
3.
7. MISCELLANEOUS.
7.1 SPECIFIC PERFORMANCE. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Agreement and agree that the terms
of this Agreement shall be specifically enforceable. If any party hereto or his
heirs, personal representatives, or assigns institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein that
such party or such personal representative has an adequate remedy at law, and
such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
7.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware as such laws are applied to agreements
among Delaware residents entered into and performed entirely within the State of
Delaware, without reference to the conflict of laws provisions thereof. The
parties agree that any action brought by either party under or in relation to
this Agreement, including without limitation to interpret or enforce any
provision of this Agreement, shall be brought in, and each party agrees to and
does hereby submit to the jurisdiction and venue of, any state or federal court
located in the County of Santa Clara, California.
7.3 AMENDMENT OR WAIVER. This Agreement may be amended or modified (or
provisions of this Agreement waived) only upon the written consent of (i) the
Company, (ii) holders of a majority of the shares of capital stock of the
Company then held by Trident (on an as-converted into Common Stock basis) and
(iii) holders of a majority in interest of the Major Stockholder Shares. Any
amendment or waiver so effected shall be binding upon the Company, each of the
parties hereto and any assignee of any such party.
7.4 SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
7.5 SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
successors, assigns, heirs, executors and administrators and other legal
representatives.
7.6 ADDITIONAL SHARES. In the event that subsequent to the date of this
Agreement any shares or other securities are issued on, or in exchange for, any
of the Stockholder Shares by reason of any stock dividend, stock split,
combination of shares, reclassification or the like, such shares or securities
shall be deemed to be Stockholder Shares, as the case may be, for purposes of
this Agreement.
7.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one instrument.
4.
7.8 WAIVER. No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
7.9 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any party's part of any breach, default or noncompliance under this Agreement or
any waiver on such party's part of any provisions or conditions of the Agreement
must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement by law, or
otherwise afforded to any party, shall be cumulative and not alternative.
7.10 ATTORNEY'S FEES. In the event that any suit or action is
instituted under or in relation to this Agreement, including without limitation
to enforce any provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
7.11 NOTICES. All notices required in connection with this Agreement
shall be in writing and shall be deemed effectively given upon the earlier of
actual receipt of: (a) personal delivery to the party to be notified, (b) one
business day after the date of confirmed transmission by facsimile, (c) five (5)
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) business day after the business day
of deposit with a nationally recognized overnight courier, specifying next day
delivery, freight prepaid, with written notification of receipt. All
communications shall be sent to the address of the holder as specified on the
signature page hereto or at such address as such party may designate by ten (10)
days advance written notice to the other parties hereto.
7.12 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto, along
with the Purchase Agreement and the other documents delivered pursuant thereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof and no party shall be liable or
bound to any other in any manner by any oral or written representations,
warranties, covenants and agreements except as specifically set forth herein and
therein. Each party expressly represents and warrants that it is not relying on
any oral or written representations, warranties, covenants or agreements outside
of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
5.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY:
XATA CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
TRIDENT:
TRIDENT CAPITAL FUND-V, L.P.
TRIDENT CAPITAL FUND-V AFFILIATES FUND, L.P.
TRIDENT CAPITAL FUND-V AFFILIATES FUND (Q), L.P.
TRIDENT CAPITAL FUND-V PRINCIPALS FUND, L.P.
TRIDENT CAPITAL PARALLEL FUND-V, C.V.
Executed on behalf of the forgoing funds by the undersigned, as an authorized
signatory of the respective general partner of each such fund:
/s/ Xxxxxxxxxxx X. Xxxxxxxx
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(signature)
Xxxxxxxxxxx X. Xxxxxxxx
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(print name)
VOTING AGREEMENT
SIGNATURE PAGE
XXXX DEERE SPECIAL TECHNOLOGIES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
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Title: President
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VOTING AGREEMENT
SIGNATURE PAGE
/s/ Xxxxxxx X. Flies
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XXXXXXX X. FLIES
XXXXXXX X. FLIES REVOCABLE TRUST UA 11/14/96
By: /s/ Xxxxxxx X. Flies
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Name: Xxxxxxx X. Flies
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Title: Trustee
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XXXXX XXXX FLIES REVOCABLE TRUST UA 11/14/96
By: /s/ Xxxxxxx X. Flies
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Name: Xxxxxxx X. Flies
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Title: Trustee
---------------------------------
XXXXXXX X. FLIES AND XXXXX XXXX FLIES, JT
/s/ Xxxxxxx X. Flies
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/s/ Xxxxx Xxxx Flies
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VOTING AGREEMENT
SIGNATURE PAGE
EXHIBIT A
MAJOR STOCKHOLDERS
Xxxx Deere Special Technologies Group, Inc.
Xxxxxxx X. Flies
Xxxxxxx X. Flies Revocable Trust UA 11/14/96
Xxxxx Xxxx Flies Revocable Trust UA 11/14/96
Xxxxxxx X. Flies and Xxxxx Xxxx Flies, JT
